1. This is an appeal against the dismissal of a suit O.S. No. 194 of 1122 M. E. by the temporary Additional District Judge, Nagarcoil. The suit was instituted by the appellant Velayudhan Pillai represented by his next friend Neelamma Pilla Lakshmi Pilla because ho was of unsound mind. The sole defendant Narayana Pillai alias Kesavan Pillai as the respondent in this appeal. Kochu Pilla and Bhagavati Pilla were two sisters. The plaintiff is the son of Kochu Pilla and the defendant the son of Bhagavathi Pilla. Kochu Pilla has also a daughter Lakshmi Pilla who died on 10th July, 1120 M. E. Kochu Pilla herself had died a year earlier in 1119 M. E.
It is common ground that on the date of the suit the plaintiff was of unsound mind. There is no reliable evidence as to when exactly be became of unsound mind but admittedly he was not con-genitally insane. For the purpose of the appeal it can be taken that the plaintiff became insane sometime in 1096 or 1097 M. E. There were two schedules of property to the plaint. A schedule constituted items alleged to be tarwad properties and plaintiff and defendant constituted an undivided Nair tarwad. B schedule items are the separate properties of Kochu Pilla. The defendant's contentions were that as the plaintiff was of unsound mind he was not entitled to any share of tarwad properties and not entitled to maintain the suit for partition. So far as B schedule properties are concerned, the defendant set up a will alleged to have been executed by Kochu Pilla bequeathing the properties to him. It may be mentioned that the next friend of the lunatic described herself as the duly married wife of the plaintiff. The defendant denied the marriage. The learned District Judge held that so far as the tarwad properties set up in schedule A are concerned, the plaintiff though a member of the tarwad could not claim partition because of supervening lunacy. He found that the will set up by the defendant was not genuine.
Nevertheless he dismissed the plaintiff's suit regarding B schedule properties also because of the same ground of supervening lunacy. In the result, the suit was dismissed. It may be mentioned that one of the issues raised was whether the next friend of the lunatic plaintiff was his legally wedded wife. The learned Judge found that the plaintiffs marriage with the next friend has not been proved beyond doubt and therefore she was not his legally wedded wife.
2. Before we deal with the main point in this case we shall briefly deal with a point raised by Mr. Sarangapani Aiyangar, learned counsel for the defendant-respondent, that the suit was not properly framed because on the finding that the next friend was not the legally wedded wife of the lunatic plaintiff, she could not file the suit on his behalf. It was difficult for us to follow the argument. Undoubtedly any person who is of sound mind and has attained majority may act as next friend of a minor or a lunatic for the suit, provided that the interest of that person is not adverse to that of the minor or the lunatic.
It was not alleged that the next friend of the plaintiff in this case was not of sound mind or that she was not a major. Mr. Sarangapani Aiyangar contended that the interests of the next friend were adverse to those of the lunatic plaintiff. At first sight the contention appeared very odd but subsequently we discovered the argument to be that the interest of the next friend should be deemed adverse because she wanted to put herself forward as the legally wedded wife of the plaintiff so that she could knock away the properties of the lunatic plaintiff.
The contention has got to be only stated to be rejected. The proviso to Order 52 Rule 3(1) read with Rule 15 in the case of lunatics has reference to adverseness of interest regarding the subject-matter. It is nobody's case that the next friend would be interested in seeing that the suit was dismissed. On the other hand even according to Mr. Sarangapani Aiyangar she would only be too anxious to obtain a decree on behalf of the lunatic. In such circumstances it cannot be held that the interests of the next friend were in any way adverse to those of the lunatic plaintiff. The suit was properly framed.
3. The issue as regards the alleged marriage between the plaintiff and the next friend was wholly unnecessary for disposal of the suit. Considerable time of the Court and the parties appears to have been wasted on this most irrelevant issue. All that we can do is to discharge the finding on this issue. The question can be agitated on any subsequent occasion when it really becomes material.
4. That leaves us within the main question whether on account of supervening insanity the plaintiff is not entitled to enforce in the suit his undoubted right otherwise to a partition of the properties set out in schedule A. This point appears to be concluded by Act XVIII of 1114 M. E. It is called the Travancore Hindu Inheritance (Removal of Disabilities) Act. The substantive section is Section 4 which runs thus:-
'Notwithstanding any rule of Hindu law or custom to the contrary, no person governed by Hindu law shall be excluded from inheritance, or from, any right or share in joint family property by reason only of a disease, deformity or physical or mental defect.'
Section 5 is a saving provision which says that nothing contained in the Act shall affect any right which has accrued or any liability which has been incurred before the commencement of the Act or shall be deemed to confer upon any person any right in respect of any religious office or of the management of any religious charitable trust. This Act, we may observe, corresponds to Act XII of 1928 in British India. That Act amended the Hindu law by providing that no person governed by Hindu law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect.
The Travancore Act went further than the Indian enacment because even congenital lunacy or idiocy is not a ground for exclusion from inheritance. Our attention was drawn to an observation in the recent decision of the Supreme Court in Muthammal v. S. Sevastanam, : 2SCR729 , that Act XII of 1928 was not retrospective. We fail to see in the present case any scope for retrospective operation because Kochu Pillai died in 1119 M. E. and Lakshmi Pilla died in 1120 M. E., that is to say long after the coming into force of Travancore Act XVIII of 1114 M. E. The suit was brought much later in 1122 M. E.
5. Mr. Sarangapani Aiyangar during the course of his argument laid emphasis on an alleged difference between the law applicable to Hindus generally and to Nairs in particular. Assuming that in certain respects Nairs were governed by customary law and of course remembering that their system of inheritance is based upon descent in the female line, we do not see how this circumstance helps the respondent. Regulation 2 of 1100 M. E. which will be applicable to the parties as Nairs confers on every adult member of a tarwad the right to claim his or her share of the properties of the tarwad (vide Section 33). The plaintiff was certainly an adult member of the tarwad on the date of the suit. There is no qualification in the Regulation that every adult member of sound mind only shall be entitled to claim partition. In the absence of any such disability (sic) (provision ?) it must he held that every adult member would be entitled. Of Course he should be properly represented in a suit filed by him to enforce his right. In that respect the provisions of the procedural law would govern.
6. Confronted with these enactments Mr. Sarangapani Aiyangar confessed that he could not dispute that under the present law the plaintiff would not be excluded from the right to tarwad or other property on account of supervening lunacy. But be stressed to us what appeared to be a very curious argument, that because the plaintiff was lunatic he did not have any volition of his own so that he could not express his desire to obtain a partition to disrupt the joint status of the tarwad. The contention, is based upon a fallacy. When a minor or lunatic represented by a guardian or next friend files a suit to enforce his rights under law, there is no question of any exercise of volition.
A minor in law can have no volition but surely it cannot be contended that a guardian or next friend or a minor cannot bring a suit to enforce the minor's right to property including a suit for partition. There is no question here of a right to disrupt joint family status by unequivocal declaration of the intention of a coparcener to separate himself from the coparcenary. We are not concerned in this case whether it will be permissible to disrupt the status by such declaration on the part of a lunatic through his guardian or next friend. Here we have a case of a regular suit instituted by a next friend.
No authority was cited to us which has even a remote bearing on this question and which supports this odd contention on behalf of the respondent. Mr. Sarangapani Aiyangar referred to certain observations in Ratneswari Nandan v. Bhagwati Saran, 1949 FCR 715 : (AIR 1950 FC 142). It is unnecessary to deal with this decision because there is nothing in it or in the observation therein which has any bearing on the question which fails for decision in this case. The same may be said of the decision of this Court in Govindan Nair v. Narayana Nair, 23 MLJ 706.
7. It follows that the plaintiff is not excluded from his undoubted rights to a share in the properties in schedule A and is therefore entitled to bring a suit to enforce his right to such share. He will also be entitled to the properties in schedule B solely. The appeal is therefore allowed, the dismissal of the suit by the learned District Judge is set aside. There will be a decree for possession of B schedule properties and a preliminary decree for partition of the properties in schedule A into two equal shares. The plaintiff will recover one of the two shares. The trial Court will appoint a commissioner for division of the properties.
The Court will also determine the quantum of profits to which the plaintiff would be entitled from the date of suit. The plaintiff will have his costs of the appeal. Costs of the suit will be provided for in the final decree proceedings. As the appeal was preferred in forma pauperis, the defendant is directed to pay the court-fee due on the memorandum of appeal in this Court to the Government.
8. The suit itself was filed in forma pauperis. By oversight we did not make any order as regards the payment of court-fee due on the plaint. We direct that the said court-fee shall come out of the estate.